1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION AT COLUMBUS

MICHAEL T. GRAVELY, 

: 

Petitioner, Case No. 2:11-cv-500 

: District Judge George C. Smith 

-vs- Magistrate Judge Michael R. Merz 

ROB JEFFREYS, Warden, Ross 

 Correctional Institution, 

: 

Respondent. 

REPORT AND RECOMMENDATIONS 

Petitioner Michael T. Gravely brought this habeas corpus action to obtain relief from his 

conviction in the Franklin County common Pleas Court and consequent sentence of thirty-six 

years imprisonment, which he is serving in Respondent’s custody. 

Gravely pleads the following Grounds for Relief: 

Ground One: Petitioner was denied due process when the 

evidence was insufficient. 

Supporting Facts: The evidence is insufficient when no witness 

by the State of Ohio identified Petitioner as the suspect that fired 

shots at Columbus police officers. 

Ground Two: Petitioner was denied due process when the trial 

court overruled Petitioner’s motion to sever the indictments. 

Supporting Facts: Petitioner was prejudiced by the joinder of the 

indictments. Trial counsel argued to the court that the joinder 

prejudiced the petitioner by limiting his ability to present certain 

defenses by possibly taking the stand in his own defense on the 

felonious assault charges he could be put in a situation to criminate 

[sic] himself on the drug charges. 

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Ground Three: Petitioner was denied a fair trial when the 

evidence should have been suppressed in violation of the 4th and 

14th amendments of the United States Constitution. 

Supporting Facts: Petitioner’s trial counsel filed a motion to 

suppress the search warrants obtained in this case. The first was 

defective in this case even when the detectives knew the address 

was wrong, they continued obtaining search warrants with 

incorrect addresses. 

Ground Four: Petitioner was denied effective assistance of 

counsel on appeal when he failed to raise insufficiency of the 

evidence. 

Supporting Facts: The petitioner was denied the effective 

assistance of appellate counsel when counsel failed to raise on 

appeal regarding the fact that petitioner’s drug convictions lacked 

sufficiency of the evidence to convict him. 

Ground Five: Petitioner was denied the effective assistance of 

appellate counsel when he failed to raise on appeal the suppression 

of the unreliability of the admissibility of identification. 

Supporting Facts: Petitioner argues that the confidential 

informant who identified him at trial incorrectly described the 

person who sold him crack cocaine. The confidential informant 

described the petitioner as 6 foot 1 205 pounds; when counsel at 

trial demonstrated that he was not 6’1 206 lbs. 

(Petition, Doc. No. 3, PageID 32-42.) 

Analysis 

Ground One: Insufficiency of the Evidence 

 In his First Ground for Relief, Gravely contends there was insufficient evidence to 

convict him of felonious assault on two Columbus police officers, each of whom was shot 

through the back door of the house in which Gravely was arrested. 

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An allegation that a verdict was entered upon insufficient evidence states a claim under 

the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 

Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 

200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). 

In order for a conviction to be constitutionally sound, every element of the crime must be proved 

beyond a reasonable doubt. In re Winship, 397 U.S. at 364. 

[T]he relevant question is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt . . . . This familiar standard gives full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the 

testimony, to weigh the evidence and to draw reasonable 

inferences from basic facts to ultimate facts. 

Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); 

United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was 

recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259, 574 N.E. 2d 492 (1991). Of course, 

it is state law which determines the elements of offenses; but once the state has adopted the 

elements, it must then prove each of them beyond a reasonable doubt. In re Winship, supra.

 In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after 

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 

110 Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required: 

In an appeal from a denial of habeas relief, in which a petitioner 

challenges the constitutional sufficiency of the evidence used to 

convict him, we are thus bound by two layers of deference to 

groups who might view facts differently than we would. First, as in 

all sufficiency-of-the-evidence challenges, we must determine 

whether, viewing the trial testimony and exhibits in the light most 

favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable 

doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 

61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the 

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evidence, re-evaluate the credibility of witnesses, or substitute our 

judgment for that of the jury. See United States v. Hilliard, 11 F.3d 

618, 620 (6th Cir. 1993). Thus, even though we might have not 

voted to convict a defendant had we participated in jury 

deliberations, we must uphold the jury verdict if any rational trier 

of fact could have found the defendant guilty after resolving all 

disputes in favor of the prosecution. Second, even were we to 

conclude that a rational trier of fact could not have found a 

petitioner guilty beyond a reasonable doubt, on habeas review, we 

must still defer to the state appellate court's sufficiency 

determination as long as it is not unreasonable. See 28 U.S.C. § 

2254(d)(2). 

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas 

corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and 

then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. 

Palmer, 541 F.3d 652 (6th Cir. 2008). 

We have made clear that Jackson claims face a high bar in federal 

habeas proceedings because they are subject to two layers of 

judicial deference. First, on direct appeal, "it is the responsibility of 

the jury -- not the court -- to decide what conclusions should be 

drawn from evidence admitted at trial. A reviewing court may set 

aside the jury's verdict on the ground of insufficient evidence only 

if no rational trier of fact could have agreed with the jury." 

Cavazos v. Smith, 565 U. S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 

311, 313 (2011) (per curiam). And second, on habeas review, "a 

federal court may not overturn a state court decision rejecting a 

sufficiency of the evidence challenge simply because the federal 

court disagrees with the state court. The federal court instead may 

do so only if the state court decision was 'objectively 

unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___, 

130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)). 

Coleman v. Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2062 (2012)(per curiam). 

 The felonious assault charges were tried to a jury which found Gravely guilty. He raised 

this claim on direct appeal to the Tenth District Court of Appeals which held as follows: 

While not clearly articulated, appellant appears to argue that the 

state failed to prove that he committed felonious assault because 

the state failed to prove that he was the one who fired a 

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gun at the officers. We disagree. 

Derrick Foster was the only person inside the house at the time of 

the shooting that testified. Although he heard shots fired from 

inside the house, he did not see appellant shoot a gun. In fact, no 

one testified that appellant fired a gun that night. However, it is 

well-established that circumstantial evidence possesses the same 

probative value as direct evidence. Id. at P92 (citing Treesh). The 

state presented circumstantial evidence linking appellant to a gun 

that was fired inside the house that night. 

Foster testified that before he fired his gun, another person inside 

the house fired a gun. Foster also testified that appellant was one of 

only two other men inside the house that had a gun that night. 

Mark Hardy testified that there were two guns fired from inside the 

house: Foster's gun, and the Springfield Armor USA XP .45. A 

picture of that gun introduced at trial shows a two-tone gun, green 

on the bottom and black on the top. That is how Foster described 

the gun appellant had with him that night. Jamie Armstrong 

testified that appellant was the major donor of DNA on the 

Springfield Armor USA XP .45. This is evidence demonstrating 

appellant's connection to this gun. The state also presented 

evidence indicating that the Springfield Armor USA XP .45 was 

fired inside the house that night. Hardy testified that a bullet 

fragment found inside the house was fired from the Springfield 

Armor USA XP .45. Five other casings found inside the house had 

marks indicating that they were at some point chambered in the 

Springfield Armor XP .45. 

In light of this circumstantial evidence, the jury did not clearly lose 

its way in concluding that appellant fired a gun at the officers. 

Accordingly, appellant's convictions are not against the manifest 

weight of the evidence. This resolution is also dispositive of 

appellant's claim that his convictions were not supported by 

sufficient evidence. Sowell. Accordingly, we overrule appellant's 

third and fourth assignments of error. 

State v. Gravely, 188 Ohio App. 3d 825, ¶¶ 47-50 (Ohio App. 10th Dist., July 20, 2010). As this 

was the last reasoned state court decision on this Ground for Relief, it is the decision this Court 

must evaluate. 

 In his Traverse (Doc. No. 13), Gravely does not take issue with the standard applied by 

the Tenth District Court of Appeals, but argues instead that the evidence does not meet that 

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standard. Gravely does not deny that the State proved without contradiction that the Springfield 

Armor XP .45, later found in the basement, was fired from inside the residence or that Officers 

Garrison and Gillis were both hit with bullets fired from inside the house. Five .45 caliber casing 

were also found inside the house which had at some time been chambered in the XP .45. The XP 

.45 was distinctive in color and Derrick Foster, the only person who was inside the house at the 

time of the raid, testified Gravely has in his possession a two-tone semiautomatic weapon 

greenish in color, a description which fits the XP .45. Foster heard shots fired from inside the 

house but did not see who fired them. Foster had a Smith and Wesson .40 caliber handgun 

which he also admitted firing; two .40 caliber casings were also found by police. Foster’s gun 

was taken from him outside the house after he crawled out a basement window. 

 Gravely admits that he was the major contributor of the DNA found on the XP .45, 

although he argues that “Keno Jarrett could not be excluded as a minor contributor.” (Traverse, 

Doc. No. 13, PageID 1324, citing Trial Tr. Vol. 3, pp.116, 132; PageID 1032, 1048.1

) Gravely 

also admits that the bullet fragment recovered from the body of Officer Garrison matched the XP 

.45. Id. at PageID 1325. He argues that the State conceded in closing argument that it had not 

proved to a 100% certainty that the bullet which struck Officer Gillis was from the XP .45 

(Traverse, Doc. No. 13, PageID 1325). 

 Gravely argues that the evidence against him was “meager circumstantial evidence” 

which is insufficient. Id. There is one important piece of direct evidence however: Derrick 

Foster testified he saw Gravely in possession of the XP .45 that night. The rest of the evidence is 

circumstantial, but it is not meager. Five ejected casings from the XP .45 were found inside the 

house. At least one bullet from the XP .45 went through the door and struck Officer Garrison. 

 

1

 The four volumes of the trial transcript were separately paginated by the transcriber. However, as filed with this 

Court, each page of the trial transcript has been electronically assigned a distinctive PageID number. 

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Officer Gillis was also on the other side of the door through which the XP .45 bullets were shot. 

No one testified that Keno Jarrett was present or possessed or fired a firearm that night.2

 Gravely 

was the major contributor of the DNA on the XP .45 when it was found that night. In addition to 

opportunity, Gravely had a motive to shoot at someone trying to enter the house: protection of a 

large quantity of valuable controlled substances which were found by the jury to be his. 

"Circumstantial evidence and direct evidence inherently possess the same probative value 

and therefore should be subjected to the same standard of proof. When the state relies on 

circumstantial evidence to prove an essential element of the offense charged, there is no need for 

such evidence to be irreconcilable with any reasonable theory of innocence in order to support a 

conviction. Therefore, where the jury is properly and adequately instructed as to the standards 

for reasonable doubt a special instruction as to circumstantial evidence is not required.” 

(Holland v. United States [1954], 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 followed; State v. 

Kulig, [1974], 37 Ohio St. 2d 157, 66 O.O. 2d 351, 309 N.E. 2d 897, overruled by State v. Jenks, 

61 Ohio St. 3d 259, 574 N.E. 2d 492 (1991).) 

 Circumstantial evidence alone is sufficient to support a conviction, and it is not necessary 

for the evidence to exclude every reasonable hypothesis except that of guilt. United States v. 

Kelley, 461 F.3d 817, 825 (6th Cir. 2006); United States v. Reed, 167 F.3d 984, 992 (6th Cir. 

1999); United States v. Beddow, 957 F.2d 1330, 1334 (6th Cir. 1992). 

 Gravely compares his case with that of the petitioner in Joseph v. Coyle, 469 F.3d 441 

(6th Cir. 2006). Joseph’s victim died of two stab wounds, either of which could have been fatal. 

Id. at 455-456. However, Joseph could not be convicted as the actual killer because he was not 

the only person present with the victim when the victim was killed; the evidence equally 

 

2

 Jarrett may be identified somewhere in the trial transcript as being present, but no one has cited the testimony to 

the Court. 

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implicated a man named Bulerin, who had an ample motive and opportunity for the killing. Id. 

Joseph is not helpful to Gravely’s case. As the Sixth Circuit found and three of the seven 

Justices of the Ohio Supreme Court found as well, the circumstantial evidence equally supported 

convictions of Joseph and Bulerin as the actual killer; indeed, they had been jointly indicted. 

When evidence points equally to one of two people, it cannot be said to have been proven 

beyond a reasonable doubt that one of them did it. 

 Here the circumstantial and direct evidence, taken together, does not point to anyone 

other than Gravely. No one testified that Jarrett had possession of the XP .45 or fired it through 

the door; Foster saw Gravely with the gun, Gravely’s DNA was found on the gun, the gun was 

fired five times, and one of the bullets undoubtedly struck Officer Garrison. It was not necessary 

for the State to prove that it was an XP .45 bullet which struck Officer Gillis. Gravely was 

indicted in Count 2 of causing or attempting to cause harm to Gillis by means of a deadly 

weapon (Indictment, Return of Writ, Doc. No. 7, PageID 131.) A person firing a .45 caliber 

handgun through a door at police officers does not need to have been successful in hitting all of 

them to be found guilty of felonious assault. 

 Applying the double layer of deference due to the jury’s and the Court of Appeals’ 

decisions on this claim, the Court cannot say that it is an objectively unreasonable application of 

Jackson v. Virginia, supra. Therefore, Ground One should be dismissed with prejudice. 

Ground Two: Failure to Sever 

 In his Second Ground for Relief, Gravely contends he was deprived of a fair trial and due 

process of law when the trial court failed to sever the drug charges from the felonious assault 

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charges for trial. 

 The record discloses that Gravely was indicted in Case No. 08CR-3601 on two counts of 

felonious assault with specifications, one count of having weapons while under disability, one 

count of possession of cocaine, and one count of trafficking in cocaine. (Indictment, Return of 

Writ, Doc. No. 7, PageID 130-134.) Within that case he moved to sever “the drug charges in 

count three and count four from the assault charges in counts [sic] one, count two, and count 

five.” (Motion to Sever Charges, Return of Writ, Doc. No. 7, PageID 170-176.) In other words, 

he moved to sever charges which had been indicted together. 

Gravely was separately indicted in Case No. 09CR-0275 one three counts of drug 

possession and one count of having weapons under disability. (Indictment, Return of Writ, Doc. 

No. 7, PageID 189-192.) The state moved to join the two cases for trial. (Motion for Joinder of 

Cases, Return of Writ, Doc. No. 7, PageID 193-195.) Gravely joined in that Motion (Entry, 

Return of Writ, Doc. No. 7, PageID 196.) There is no record reference to Gravely’s opposing the 

motion to join the two cases or thereafter having moved to sever them.3

 

Thus the issue in Ground Two is whether the drug and assault charges in the Indictment 

in Case No. 08CR-3601 were properly tried together.4

 While the language of both the Petition 

and the Traverse are somewhat ambiguous on this point, the argument both here and in the state 

courts makes it clear that Gravely wanted to try the drug and assault charges in the earlier case 

separate from each other. 

The court of appeals decided the issue of joinder of the indictments and joinder of the 

charges in the first indictment together and wrote: 

 

3

 On appeal, Gravely complained of joinder of the two indictments for trial, but the Court of Appeals found he had 

not requested severance of the indictments. State v. Gravely, supra, at ¶ 31, n. 6. 4

 Gravely waived his right to trial by jury on the weapons under disability count and that was tried to the bench. 

This is not uncommon behavior on such charges, since trying the weapons under disability charge to a jury will 

often expose the jury to the prior felony conviction which creates the disability. 

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Appellant contends in his second assignment of error that the trial 

court erred by denying his motion to sever the two indictments. 

However, the record indicates that appellant never asked the trial 

court to sever the two indictments. A day before the filing of 

appellant's second indictment, he requested the trial court to sever 

the drug charges from the felonious assault charges in case No. 

08CR05-3601 and to separately try those charges. The trial court 

denied that request. One day after the filing of the second 

indictment, the state requested the trial court to join the two 

indictments. The trial court granted the state's motion and joined 

the indictments. Appellant did not request severance of the 

indictments before, during, or after trial. [Footnote omitted.] 

Because appellant did not request severance of the two indictments 

in the trial court, he waived any error in this regard absent plain 

error. Crim.R. 52(B); State v. Morales, 10th Dist. No. 03AP-318, 

2004 Ohio 3391, P18; State v. Stiles, 3d Dist. No. 1-08-12, 2009 

Ohio 89, P23 (failure to renew motion to sever during trial waives 

issue on appeal). 

Under Crim.R. 52(B), plain errors affecting substantial rights may 

be noticed by an appellate court even though they were not brought 

to the attention of the trial court. To constitute plain error, there 

must be: (1) an error, i.e., a deviation from a legal rule, (2) that is 

plain or obvious, and (3) that affected substantial rights, i.e., 

affected the outcome of the trial. State v. Barnes (2002), 94 Ohio 

St.3d 21, 27, 2002 Ohio 68, 759 N.E.2d 1240. Even if an error 

satisfies these prongs, appellate courts are not required to correct 

the error. Appellate courts retain discretion to correct plain errors. 

Id; State v. Litreal, 170 Ohio App.3d 670, 2006 Ohio 5416, P12, 

868 N.E.2d 1018. Courts are to notice plain error under Crim .R. 

52(B) "'with the utmost caution, under exceptional circumstances 

and only to prevent a manifest miscarriage of justice.'" Barnes

(quoting State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, 

paragraph three of syllabus). 

The law favors the joinder of multiple offenses in a single trial. 

State v. Brinkley, 105 Ohio St.3d 231, 2005 Ohio 1507, P28, 824 

N.E.2d 959; State v. Coley, 93 Ohio St.3d 253, 259, 2001 Ohio 

1340, 754 N.E.2d 1129. Pursuant to Crim.R. 13, two indictments 

may be tried together if the offenses could have been joined in a 

single indictment. State v. Tipton, 10th Dist. No. 04AP-1314, 2006 

Ohio 2066, P25. Nevertheless, a trial court may grant a severance 

under Crim.R. 14 if a defendant affirmatively establishes that he 

would be prejudiced by a joinder. State v. Lott (1990), 51 Ohio 

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St.3d 160, 163, 555 N.E.2d 293; State v. Wilkins, 12th Dist. No. 

CA2007-03-007, 2008 Ohio 2739, P13. 

Appellant argues the trial court should have severed the 

indictments because he was prejudiced by the joinder. We 

disagree. 

A defendant claiming error in the trial court's refusal to allow 

separate trials has the burden of affirmatively showing that his 

rights were prejudiced. State v. Torres (1981), 66 Ohio St.2d 340, 

343, 421 N.E.2d 1288 (citing State v. Roberts (1980), 62 Ohio 

St.2d 170, 175, 405 N.E.2d 247). Appellant argues that joinder 

prejudiced him by limiting his ability to present a defense, because 

if he testified on his own behalf on the felonious assault charge, he 

could be put in a situation where he would incriminate himself on 

the drug charges. We do not find this argument persuasive. HN8

The "[m]ere possibility that defendant might have better choice of 

trial tactics if counts were separated or mere possibility that he 

might desire to testify on one count and not on the other is 

insubstantial and speculative and is not sufficient to show 

prejudice in joinder of multiple charges." Torres at 344; State v. 

Walker (June 30, 2000), 2d Dist. No. 17678, 2000 Ohio App. 

LEXIS 2952 (prejudice not shown just because defendant may 

have had better defense strategies absent joinder). 

Appellant also argues that joinder of the indictments confused the 

jury regarding the identification of the shooter on the felonious 

assault charges. Specifically, he argues that the jury was more 

likely to convict him of the assault charges if they believed he was 

a drug dealer. This is also nothing more than speculation and does 

not rise to the level of prejudice necessary to sever indictments. 

See State v. Broadnax, 2d Dist. No. 21844, 2007 Ohio 6584, P40. 

Even if appellant could establish prejudice in this case, the state 

can negate claims of prejudice in two ways. State v. Cameron, 10th 

Dist. No. 09AP-56, 2009 Ohio 6479, P35 (citing Brinkley); Tipton

at P27. First, if the state shows that evidence of one offense would 

be admissible at a separate trial of the other offense as "other acts" 

evidence under Evid.R. 404(B), then joinder of the offenses in the 

same trial cannot prejudice the defendant. State v. LaMar, 95 Ohio 

St.3d 181, 2002 Ohio 2128, P50, 767 N.E.2d 166; Brinkley at P30. 

Second, a joinder cannot result in prejudice if the evidence of the 

offenses joined at trial is simple and direct, so that a jury is capable 

of segregating the proof required for each offense. State v. 

Johnson, 88 Ohio St. 3d 95, 109, 2000 Ohio 276, 723 N.E.2d 

1054; State v. Mills (1992), 62 Ohio St.3d 357, 362, 582 N.E.2d 

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972. These two tests are disjunctive, so that the satisfaction of one 

negates a defendant's claim of prejudice without having to consider 

the other test. Cameron at P35 (citing Mills). 

Evidence is "simple and direct" if the jury is capable of segregating 

the proof required for each offense. Id. at P40. "The rule seeks to 

prevent juries from combining the evidence to convict the 

defendant, instead of carefully considering the proof offered for 

each separate offense." Id. Here, the evidence of the offenses is 

simple and direct and is not confusing or difficult to separate. The 

offenses in each indictment were analytically and logically 

separate: assault charges in which appellant allegedly shot at police 

officers and drug charges in which appellant allegedly possessed 

drugs. Although the offenses occurred at the same time and in the 

same residence, the offenses were separate and not so complex that 

the jury would have difficulty separating the proof required for 

each offense. Tipton at P31. Therefore, even if appellant had 

shown prejudice, manifest injustice did not result from the trial 

court's failure to sever the indictment. 

State v. Gravely, supra, ¶¶ 31-39. To prevail on this Ground for Relief, Gravely would be forced 

to show that this decision of the Tenth District Court of Appeals was contrary to or an 

objectively unreasonable application of clearly established Supreme Court precedent. That he 

has not done. The only Supreme Court case he cites is United States v. Lane, 474 U.S. 438 

(1986) which holds that misjoinder even in a federal criminal case is unconstitutional only if it 

denies a defendant a fair trial. There was no such denial here. The felonious assault charges 

arise from shootings one night. Gravely and the drugs were found in the same building the next 

day.5

 Thus the criminal events are chronologically closely connected and the elements of the 

two sets of offenses are simple and easily distinguished from one another. 

 Therefore the Second Ground for Relief should be dismissed with prejudice on the 

merits. 

 

5

 Gravely says he was found at a separate “address,” but the insubstantiality of division of the addresses is dealt with 

thoroughly by the Court of Appeals. 

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Ground Three: Failure to Suppress Evidence 

 In his Third Ground for Relief, Gravely asserted that he was tried on unconstitutionally 

seized evidence which should have been suppressed. The Warden responded that review of the 

merits of this Fourth Amendment claim was barred by Stone v. Powell, 428 U.S. 465 (1976). In 

his Traverse, Gravely concedes the claim is not cognizable, based on Stone. 

 Accordingly, the Third Ground for Relief should be dismissed without prejudice as not 

cognizable in federal habeas corpus in light of Stone v. Powell. 

Grounds Four and Five: Ineffective Assistance of Appellate Counsel 

 

 In his Fourth and Fifth Grounds for Relief, Gravely asserts he received ineffective 

assistance of appellate counsel when his appellate counsel failed to raise as an assignment of 

error (1) the insufficiency of the evidence to convict him on the drug charges and (2) the 

suppression of the unreliability of the admissibility of identification. 

Neither of these claims was presented on direct appeal. Rather, they were presented as 

underlying assignments of error which should have been raised on direct appeal but were not. 

Gravely raised his ineffective assistance of appellate counsel claims in the proper manner under 

Ohio law, to wit, by filing an application for reopening his direct appeal under Ohio R. App. P. 

26(B). 

 The Warden asserts that Gravely procedurally defaulted in presenting these claims to the 

state courts and thus they were not preserved for merits review in this Court (Return of Writ, 

Doc. No. 7, PageID 61). Gravely responds that he did preserve the claims by presenting them as 

claims underlying his App. R. 26(B) application (Traverse, Doc. No. 13, PageID 1315-1317.) 

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Gravely is mistaken: filing a 26(B) application does not preserve the underlying claims for merit 

review unless the state court reopens the direct appeal and itself considers the merits. 

 If a petitioner’s claims in federal habeas rest on different theories than those presented to 

the state courts, they are procedurally defaulted. Williams v. Anderson, 460 F.3d 789, 806 (6th

Cir. 2006); Lorraine v. Coyle, 291 F.3d 416, 425 (6th Cir. 2002), citing Wong v. Money, 142 F.3d 

313, 322 (6th Cir. 1998); Lott v. Coyle, 261 F.3d 594, 607, 619 (6th Cir. 2001)(“relatedness” of a 

claim will not save it). An Ohio App. Rule 26(B) application preserves for habeas review only 

the ineffective assistance of appellate counsel arguments, not the underlying substantive 

arguments. Wogenstahl v. Mitchell, 668 F.3d 307, 338 (6th Cir. 2012), citing Lott v. Coyle, 261 

F.3d 594, 612 (6th Cir. 2001). “The Lott court explained that permitting an Ohio prisoner to raise 

a substantive claim in a Rule 26(B) motion "would eviscerate the continued vitality of the 

procedural default rule; every procedural default could be avoided, and federal court merits 

review guaranteed, by claims that every act giving rise to every procedural default was the result 

of constitutionally ineffective counsel." Id. 

 Gravely argues the court of appeals essentially waived his default and considered the 

merits of his claims. If this were so, there would be no procedural default, because under the 

controlling precedent, the state courts must actually enforce a procedural default before it will 

bar merits consideration in federal court. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986) 

(establishing a four-part test for determining whether a procedural rule is an independent and 

adequate state ground). 

 Because the decision of the Court of Appeals on the Application to Reopen is material to 

both the Fourth and Fifth Grounds for Relief, it is set forth here in full: 

¶ 1 On October 29, 2010, defendant-appellant, Michael Gravely, 

filed a pro se application for reopening pursuant to App R. 26(B). 

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He attempts to reopen the appellate judgment rendered by tins 

court in State v. Gravely, 10th Dist No. 09AP-440, 2010-0hio3379. In that appeal, defendant through counsel, argued that the 

trial court erred by denying his motion to suppress evidence and 

trying his two indictments together, and that his felonious assault 

convictions were not supported by sufficient evidence and were 

against the manifest weight of the evidence. This court disagreed 

with defendant’s arguments and affirmed defendant’s convictions. 

¶ 2 Defendant now seeks to reopen his appeal based on ineffective 

assistance of appellate counsel. The State of Ohio filed a 

memorandum in opposition to defendant's application. [Footnote 

omitted.] For the following reasons, we deny defendant’s 

application. 

¶ 3 In order to prevail on an application to reopen an appeal, the 

defendant must establish "a colorable claim" of ineffective 

assistance of counsel. State v. Sanders, (1996) 75 Ohio St. 3d 607. 

The defendant must set forth one or more errors or arguments 

omitted by appellate counsel and demonstrate that the appellate 

court did not consider these matters. App.R. 26(B)(2). The 

application will be granted where there is "a genuine issue as to 

whether the applicant was derived of the effective assistance of 

counsel.” App. R. 26(B)(5) In determining whether the applicant 

has established ineffective assistance of counsel, we apply the 

standard in Strickland v. Washington, (1984), 466 US. 668, 104 

S.Ct. 2052. Sanders. Under Strickland, the defendant must show 

that counsel was deficient for failing to raise the issue he now 

presents and that there was a reasonable probability of success had 

that issue been presented on appeal. 

¶ 4 Defendant claims that his appellate counsel was ineffective for 

failing to raise two assignments of error. First, he claims counsel 

should have assigned as error the trial court’s admission of 

“unreliable” identification testimony made by a confidential 

informant. However, defendant’s trial counsel did not challenge 

the admissibility of this testimony. Thus appellate counsel would 

have had to show that the trial court committed plain error by 

admitting the identification testimony. State v. Parker (1990), 53 

Ohio St. 3d 82, 87. 

¶ 5 Under Crim. R. 52(B), plain errors affecting substantial rights 

may be noticed by an appellate court even though they were not 

brought to the attention of the trial court. To constitute plain error, 

there must be: (1) an error, i.e., a deviation from a legal rule, (2) 

that is plain or obvious, and (3) that affected substantial rights, i.e., 

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affected the outcome of the trial. State v. Barnes (2002), 94 Ohio 

St. 3d 21, 27. Even if an error satisfies these prongs, appellate 

courts are not required to correct the error. Appellate courts retain 

discretion to correct plain errors. Id.; State v. Litreal, 170 Ohio 

App. 3d 670, 2006-Ohio-5416, ¶ 12. Courts are to notice plain 

error under Crim. R. 52(B) “’with the utmost caution, under 

exceptional circumstances and only to prevent a manifest 

miscarriage of justice.’” Barnes, quoting State v. Long (1978), 53 

Ohio St. 2d 91, paragraph three of the syllabus. 

¶ 6 Defendant contends that the identification testimony was 

unreliable. However, before out-of-court identification testimony 

may be suppressed, the trial court must first find that the procedure 

employed was so impermissibly suggestive as to give rise to a very 

substantial likelihood of misidentification. State v. Barnett (1990), 

67 Ohio App. 3d 780, 787. The defendant has the initial burden to 

show that the identification procedure was unduly suggestive. 

State v. Harris, 2d Dist. No. 19796, 2004-Ohio-3570, ¶ 19. Only if 

the defendant meets that burden must the court then consider 

whether the identification, viewed under the totality of the 

circumstances, is reliable despite its suggestive character. Id.

(citing State v. Wills (1997), 120 Ohio App. 3d 320, 324). If the 

pretrial confrontation procedure was not unduly suggestive, any 

remaining questions as to reliability go to the weight of the 

identification, not its admissibility, and no further inquiry into the 

reliability of the identification is required. State v. Reddy. 10th

Dist. No. 09AP-858, 2010-Ohio-3892, ¶ 31 (citing Wills at 325). 

¶ 7 Here, defendant does not allege that the identification 

procedure employed by the police was unduly or impermissibly 

suggestive. His only argument centers on the alleged unreliability 

of the identification. This argument addresses the weight of the 

testimony, not the admissibility. Absent a showing that the 

identification procedure was unduly suggestive, defendant does not 

meet his initial burden in order to suppress the identification 

testimony, let alone to show that the trial court committed plain 

error by admitting such testimony. Appellate counsel was not 

ineffective for not raising this assignment of error. 

¶ 8 Second, defendant claims that appellate counsel should have 

argued that his drug-related convictions were not supported by 

sufficient evidence. In addition to his felonious assault 

convictions, a jury also found defendant guilty of one count of 

trafficking in cocaine, two counts of possession of cocaine, and 

one count of possession of heroin. 

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¶ 9 As the Supreme Court of Ohio has noted: 

An appellate court’s function when reviewing the 

sufficiency of the evidence to support a criminal 

conviction is to examine the evidence admitted at trial to 

determine whether such evidence, if believed, would 

convince the average mind of the defendant’s guilt 

beyond a reasonable doubt. The relevant inquiry is 

whether, after viewing the evidence in a light most 

favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime 

proven beyond a reasonable doubt. 

State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the 

syllabus. 

¶ 10 The state presented sufficient evidence, when viewed in a 

light most favorable to the state, for a jury to find defendant guilty 

of the drug-related convictions. In regard to his trafficking 

conviction, the confidential informant testified that he purchased 

cocaine from the defendant. In regard to his possession 

convictions, police found defendant in a second floor apartment of 

a house. In that apartment, the police also found a number of 

baggies that contained drugs. Defendant’s DNA was found on a 

number of those baggies. Police also found paperwork inside the 

apartment that connected defendant with the apartment. Sufficient 

evidence supports defendant’s drug-related convictions. 

Accordingly, appellate counsel was not ineffective for not raising 

the assignment of error. 

¶ 11 Defendant has not established a colorable claim of ineffective 

assistance of appellate counsel. Accordingly, his application for 

reopening is denied. 

State v. Gravely, No. 09AP-440, ¶¶ 1-11 (Ohio App. 10th Dist. Dec. 14, 2010)(unreported; copy 

at Return of Writ, Doc. No. 7, PageID 353-357.) 

 The court of appeals dealt with these claims in the reverse order from the way in which 

they are presented here. First of all, it found that the claim of admitting unreliable identification 

testimony had not been made in the trial court and therefore would have been reversible on direct 

appeal only if its admission had been “plain error.” Failing to make the claim in the trial court 

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violated the contemporaneous objection rule. 

At the first step of the procedural default analysis under Maupin v. Smith, supra, the 

federal court must determine if the State has an applicable procedural rule. Ohio does and its 

contemporaneous objection rule — that parties must preserve errors for appeal by calling them to 

the attention of the trial court at a time when the error could have been avoided or corrected, set 

forth in State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see also State v. 

Mason, 82 Ohio St. 3d 144, 162 (1998) — is an adequate and independent state ground of 

decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012)(citing Keith v. Mitchell, 455 

F.3d 662, 673 (6th Cir. 2006); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Biros v. 

Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003), citing 

Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 

2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also Seymour v. Walker, 224 

F.3d 542, 557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. 

Bradshaw, 591 F.3d 517, 522 (6th Cir.), cert. denied, 131 S. Ct. 185 (2010). 

The second step of the Maupin analysis requires that the state procedural rule be actually 

enforced. Here the court of appeals reviewed the unreliable identification claim for “plain error.” 

A state appellate court’s review for plain error is enforcement, not waiver, of a procedural 

default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell, 538 F.3d 

478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); White v. 

Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); 

Hinkle v. Randle, 271 F.3d 239 (6th Cir. 2001), citing Seymour v. Walker, 224 F.3d 542, 557 (6th

Cir. 2000)(plain error review does not constitute a waiver of procedural default); accord, Mason 

v. Mitchell, 320 F.3d 604 (6th Cir. 2003). 

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Having found no plain error in the trial court’s admission of the identification testimony, 

the court of appeals found there was no ineffective assistance of appellate counsel in failing to 

raise this claim as an assignment of error, essentially because it would not have been successful. 

While this is not a decision on the merits of the underlying claim, it is a merits decision on the 

ineffective assistance of appellate counsel claim. Thus the ineffective assistance of appellate 

counsel claim is preserved for federal habeas merits review, although the underlying claim is not. 

In deciding the ineffective assistance of appellate counsel claim, the court of appeals 

relied on the relevant Supreme Court precedent, Strickland v. Washington, 466 U.S. 668 (1984). 

Gravely, supra, at ¶ 3. Strickland holds: 

A convicted defendant's claim that counsel's assistance was so 

defective as to require reversal of a conviction or death sentence 

has two components. First, the defendant must show that counsel's 

performance was deficient. This requires showing that counsel 

was not functioning as the "counsel" guaranteed the defendant by 

the Sixth Amendment. Second, the defendant must show that the 

deficient performance prejudiced the defense. This requires 

showing that counsel's errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable. Unless a 

defendant makes both showings, it cannot be said that the 

conviction or death sentence resulted from a breakdown in the 

adversary process that renders the result unreliable. 

466 U.S. at 687. 

With respect to the first prong of the Strickland test, the Supreme Court has commanded: 

Judicial scrutiny of counsel's performance must be highly 

deferential. . . . A fair assessment of attorney performance requires 

that every effort be made to eliminate the distorting effects of 

hindsight, to reconstruct the circumstances of counsel=s challenged 

conduct, and to evaluate the conduct from counsel=s perspective at 

the time. Because of the difficulties inherent in making the 

evaluation, a court must indulge a strong presumption that 

counsel's conduct falls within a wide range of reasonable 

professional assistance; that is, the defendant must overcome the 

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presumption that, under the circumstances, the challenged action 

"might be considered sound trial strategy." 

466 U.S. at 689. 

As to the second prong, the Supreme Court held: 

The defendant must show that there is a reasonable probability 

that, but for counsel's unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is 

a probability sufficient to overcome confidence in the outcome. 

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 

F.3d 313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally

Annotation, 26 ALR Fed 218. 

The Strickland test applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 

(2000); Burger v. Kemp, 483 U.S. 776 (1987). To evaluate a claim of ineffective assistance of 

appellate counsel, then, the court must assess the strength of the claim that counsel failed to 

raise. Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011), citing Wilson v. Parker, 515 F.3d 682, 

707 (6th Cir. 2008). Counsel's failure to raise an issue on appeal amounts to ineffective assistance 

only if a reasonable probability exists that inclusion of the issue would have changed the result of 

the appeal. Id. citing Wilson. If a reasonable probability exists that the defendant would have 

prevailed had the claim been raised on appeal, the court still must consider whether the claim's 

merit was so compelling that the failure to raise it amounted to ineffective assistance of appellate 

counsel. Id. citing Wilson. The attorney need not advance every argument, regardless of merit, 

urged by the appellant. Jones v. Barnes, 463 U.S. 745, 751-752 (1983)("Experienced advocates 

since time beyond memory have emphasized the importance of winnowing out weaker 

arguments on appeal and focusing on one central issue if possible, or at most on a few key 

issues." 463 U.S. 751-52). Effective appellate advocacy is rarely characterized by presenting 

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every non-frivolous argument which can be made. Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 

2003). Williams v. Bagley, 380 F.3d 932, 971 (6th Cir. 2004), cert. denied, 544 U.S. 1003 (2005); 

see Smith v. Murray, 477 U.S. 527 (1986). However, failure to raise an issue can amount to 

ineffective assistance. McFarland v. Yukins, 356 F.3d 688 (6th Cir. 2004), citing Joshua v. 

Dewitt, 341 F.3d 430, 441 (6th Cir. 2003); Lucas v. O’Dea, 179 F.3d 412, 419 (6th Cir. 1999); 

and Mapes v. Coyle, 171 F.3d 408, 427-29 (6th Cir. 1999). 

 “In order to succeed on a claim of ineffective assistance of appellate counsel, a petitioner 

must show errors so serious that counsel was scarcely functioning as counsel at all and that those 

errors undermine the reliability of the defendant’s convictions.” McMeans v. Brigano, 228 F.3d 

674 (6th Cir. 2000), citing Strickland and Rust v. Zent, 17 F.3d 155, 161-62 (6th Cir. 1994). 

Counsel’s failure to raise an issue on appeal could only be ineffective assistance if there is a 

reasonable probability that inclusion of the issue would have changed the result of the appeal. 

McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004), citing Greer v. Mitchell, 264 F.3d 663, 

676 (6th Cir. 2001), cert. denied, 535 U.S. 940 (2002). “Counsel’s performance is strongly 

presumed to be effective.” McFarland, quoting Scott v. Mitchell, 209 F.3d 854, 880 (6th Cir. 

2000)(citing Strickland). “To prevail on a claim of ineffective assistance of appellate counsel, a 

petitioner must show that appellate counsel ignored issues [which] are clearly stronger than those 

presented.” Webb v. Mitchell, 586 F.3d 383, 399 (6th Cir, 2009); Smith v. Robbins, 528 U.S. 259, 

288 (2000), quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986). Appellate counsel is not 

ineffective for failure to predict the development of the law. Thompson v. Warden, 598 F.3d 281 

(6th Cir. 2010), citing Lott v. Coyle, 261 F.3d 594, 609 (6th Cir. 2001)(not ineffective assistance 

of appellate counsel to fail to anticipate State v. Foster in an appellate district which had ruled 

the other way.) Accord, Carter v. Timmerman-Cooper, 2010 U.S. App. LEXIS 10549 (6th Cir. 

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May 25, 2010). 

 This Court cannot say that failing to raise the unreliable identification testimony 

assignment of error was ineffective assistance of appellate counsel. Appellate counsel would 

have known that he would have had to overcome the plain error barrier and doing so was 

unlikely because no proof had been offered that the identification procedure was suggestive in 

any way. The confidential informant bought cocaine from Gravely and had an opportunity to 

observe him in the act of committing the crime for which he was convicted. There is nothing 

unduly suggestive about the process of sending a confidential informant to make a drug purchase 

at a suspected drug house and then having him identify the person who sold him the drugs. 

 Therefore the decision of the court of appeals that it was not ineffective assistance of 

appellate counsel to fail to raise the identification testimony issue on direct appeal is not an 

objectively unreasonable application of Strickland and is therefore entitled to deference from this 

Court. Gravely’s Fifth Ground for Relief, considered as a claim of ineffective assistance of 

appellate counsel, is without merit. 

 With respect to the claim that it was ineffective assistance of appellate counsel to fail to 

assign as error the insufficiency of the evidence on the drug charges, the court of appeals 

concluded that there was ample evidence to support these convictions – purchase of cocaine by 

the confidential informant, packages of drugs with Gravely’s DNA in a residence where he was 

found and indicia of usual possession of the residence was also found. Again applying 

Strickland, the court of appeals concluded it was not ineffective assistance of appellate counsel 

to fail to raise this claim because it would have been plainly without merit. 

 Here again the court of appeals’ decision is entitled to deference under the AEDPA 

because it is not an objectively unreasonable application of Strickland. Gravely’s Fourth Ground 

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for Relief is without merit and should be dismissed with prejudice. 

Conclusion 

 Based on the foregoing analysis, it is respectfully recommended that the Petition be 

dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, 

Petitioner should be denied a certificate of appealability and this Court should certify to the Sixth 

Circuit that any appeal would not be taken in objective good faith. 

January 23, 2013. 

 s/ Michael R. Merz

 United States Magistrate Judge 

NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen 

days because this Report is being served by one of the methods of service listed in Fed. R. Civ. 

P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected 

to and shall be accompanied by a memorandum of law in support of the objections. If the Report 

and Recommendations are based in whole or in part upon matters occurring of record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. A party may respond to another party=s objections 

within fourteen days after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 

F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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